Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00015486-001

1 November 2017

The complainant asserts that she is entitled to redundancy lump sum payment, while the respondent denies that she was an employee at the time other employees were made redundant.

The complainant outlined that this was a claim pursuant to the Redundancy Payments Act. She commenced employment on the 14th October 2006. The complainant states that she received a P45 from the respondent on the 9th March 2017. This states that her date of termination was the 14th December 2016. She submits that she was out on sick leave and had been certified until the 31st May 2016. She explained that there had been an accident at work on the 14th July 2014. The complainant did not return to work and could not return to work from this date. She travelled to her native Poland for surgery and was covered by sick certificates until the 31st May 2016.

The complainant attended the workplace on the 6th March 2017. She was aware that the respondent was making staff redundant, but was not informed of her redundancy. She tried to explain to the respondent representative what had happened. She asked to bring a colleague to help translate. The respondent did not want to meet her and there was no substantive discussion.

The complainant stated that nothing had happened on the 14th December 2016. There was no correspondence from the company except for the P45 accompanied by a compliments slip. She submits that for the purposes of this claim, she is entitled to count as service the period of the 14th October 2006 to the 14th July 2015. She stated that the act of sending her a P45 was clear evidence of her dismissal. This was sent to her on the 9th March 2017 and this was the date of dismissal.

The complainant also raised her entitlement to annual leave. She had not been paid for ten days of annual leave taken between the 25th August and the 5th September 2014. She was also not paid at the end of the employment for minimum notice and accrued annual leave. The last pay slip and payment she received from the respondent was the 13th July 2014. She received Illness Benefit after that. She did not receive a redundancy certificate from the employer.

The complainant submitted that it was clear that there was a dismissal on the 9th March 2017 and she was entitled to notice. There was no letter of dismissal issued by the respondent. The complainant accepted that the overtime was seasonal and that she worked late from spring to autumn. In respect her rate of overtime, the complainant said that this amounted to €160 per week over six months of the year. This equates to €80 euro a week over a full year. Her gross weekly wage was €512 per week.

The representative of the respondent indicated that it agreed with the complainant’s start date. She had an accident in work on the 14th July 2014. She was paid for some time as it would cause hardship not to do so, because of delays in receiving social welfare payments. The complainant was paid for four to five months. She sent in sick certificates and the last one was submitted in May 2016. The respondent referred the complainant to occupational health. There was a legal case, which settled. The representative could not remember whether the settlement encompassed employment law claims.

The respondent decided that the complainant would never be able to come back to work and she made no effort to contact it. The respondent then issued the P45 and it was dated the 14th December 2016. There was no letter of dismissal as the respondent took it from the occupational injury forms that she would not be coming back.

The representative of the respondent said that the respondent had appointments with staff in March 2017 regarding redundancies. Their understanding was that the complainant was no longer an employee and therefore not part of the redundancy process. In respect of the meeting of the 6th March 2017, the representative said that this was a two-minute conversation at the door where she told the complainant that she was on sick leave and not scheduled. In respect of the complainant’s rate of pay, the representative said that it was €432 basic gross. While there was overtime in the summer months from May to August, her hours of work went back to 26 hours per week after that.

The representative could not confirm the situation regarding annual leave as this is a redundancy case.

CA-00015486-001

This is a complaint made pursuant to the Redundancy Payments Act. The complainant’s employment commenced on the 14th October 2006. She suffered an injury at work on the 14th July 2014, her last day in the respondent workplace. Her absence from that date was certified until May 2016. I find that it is an occupational injury within the ambit Schedule 3, Regulation 8 of the Redundancy Payments Acts. The complainant is therefore entitled to count the period of 52 weeks from the 14th July 2014 as reckonable service.

I find that her employment came to an end on the 7th March 2017, the date the respondent issued the P45. This was an act in which the respondent was clear that it wished to terminate the employment relationship. Nothing happened in December 2016 to indicate that the respondent then intended to end the employment relationship. I find that the complainant’s gross weekly rate of pay was €512.

In respect of the annual leave claim, I note that this complaint relates to the Redundancy Payments Act and the respondent indicated that it was not prepared to meet this claim. I note that the claim for the August/September 2014 claim is out of time as the date of the end of this leave year was the 31st March 2015. 

The complainant raises her entitlement to notice. Applying the authority of Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 210, I find that she is entitled to redress pursuant to the Minimum Notice and Terms of Employment Act. I note that the complainant’s employment commenced on the 14th October 2006 and that she went on sick leave from the 14th July 2014. The First Schedule, Regulation 10 of the Act provides that the first 26 weeks of sick leave is computable for the purposes of the Act. This period ended on the 19th January 2015. The complainant had nine years’ computable service and I, therefore, make an award equivalent to four weeks’ pay, i.e. €2,048.

CA-00015486-001

I decide that, pursuant to the Redundancy Payment Acts, the complainant is entitled to a redundancy lump sum calculated according to the following criteria:

Date of commencement: 14th October 2006

Date of sick leave: 15th July 2014 to the 7th March 2017 (of which the first 52 weeks are reckonable service)

Date of end of employment: 7th March 2017

Weekly gross pay: €512

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during this employment.

I decide that, pursuant to the Minimum Notice and Terms of Employment Act, the respondent shall pay redress to the complainant of €2,048.

Redundancy Payments Act / Schedule 3, Regulation 8

Minimum Notice and Terms of Employment Act / Schedule 1, Regulation 10